Nothing prevents an employer from amending a disciplinary charge before a finding is made, provided that the amendment does not add to the complexity or substance of the charges – for example, when it relates to the categorisation or 'label' of the charge – and the employee is afforded the opportunity to address the proposed amendment.

This was recently confirmed in Munnik Basson Dagama Attorneys v CCMA,(1) in which the Labour Court reviewed and set aside the Commission for Conciliation, Mediation and Arbitration's (CCMA) finding that the employer's amendment of the charge sheet rendered the employee's dismissal procedurally unfair.

In this case the employee (a letter administrator) was charged with misconduct relating to her failure to perform certain tasks. A disciplinary enquiry proceeded over the course of three days. At the commencement of the second day, the employer applied to amend the charge sheet by categorising the alleged misconduct as 'gross negligence'. This was to be effected by inserting the following wording: "You are charged with gross negligence in that you ..." The employee objected to the proposed amendment. The chairperson, however, permitted it on the basis that:

  • previous evidence had been led dealing with the employee's alleged failure to perform certain tasks; and
  • the evidence would probably not have differed had the employee's alleged failures originally been labelled as 'gross negligence'.

In addition, the chairperson offered both parties the opportunity to adjourn the enquiry to consider their position, and – if necessary – to present any further evidence that may have become relevant due to the labelling of the charges as 'gross negligence'. Since both parties had elected not to adjourn, the enquiry proceeded and further evidence was then presented. At the conclusion of the enquiry, the employee was found guilty of misconduct and thereafter dismissed.

The employee referred an unfair dismissal dispute to the CCMA, alleging that her dismissal had been both procedurally and substantively unfair. The commissioner ultimately found that the dismissal was substantively fair, but that the amendment of the charges after evidence was led rendered the disciplinary enquiry procedurally defective. The employee was thus awarded three months' salary as compensation. The commissioner also remarked that the chairperson's actions seemed to confirm the employee's submission that the chairperson was not impartial.

The employer brought an application to review and set aside the commissioner's finding that the dismissal was procedurally unfair. The employee also belatedly brought a counter-review application, supported by an application for condonation, to review and set aside the commissioner's finding that her dismissal had been substantively fair.

The counter-review application was determined before the review application. The Labour Court did not grant condonation to the employee and, accordingly, her application was dismissed with costs.

Some months later, the Labour Court considered the employer's review application. With reference to the rules for the amendment of pleadings and documents in civil proceedings, the court confirmed that these principles apply equally in labour matters. In considering the specific amendment, the court held that the amendment was nothing more than categorising the charges as 'gross negligence'.

The court confirmed that labelling particular charges of misconduct as 'gross negligence' in no way added to the complexity or substance of the charges. The court stated that the focus must always be on the factual allegations in the charge sheet, and not on their categorisation. The alleged factual conduct by the employee (ie, her failure to perform her duties) was not amended by the employer in any way.

The court then also considered the procedure followed by the chairperson in allowing the amendment:

  • He afforded both parties an opportunity to address him on the proposed amendment; and
  • He allowed both parties to adjourn to consider their position and to present further evidence, if they deemed it necessary.

Nothing prevented the employer from amending the charge sheet. The court, however, commented that the position would have been different had the chairperson not allowed the parties to make representations or to lead further evidence.

The court held that the commissioner's finding (ie, that the amendment to a charge sheet caused procedural fairness) suggested that the commissioner had misunderstood the test for procedural fairness in the disciplinary hearing. This amounted to a material error of law, which constituted a reviewable irregularity and meant that the commissioner had exceeded his powers. In addition, the court found that no reasonable commissioner could have found such amendment as procedurally unfair.

Having regard to Avril Elizabeth Homes for Mentally Handicapped v CCMA,(2) the court held that the employee's dismissal had been procedurally fair, since:

  • she was informed of the charges against her;
  • she had been provided with ample opportunity to state her case; and
  • the matter was heard by an impartial chairperson.

In addition, the employee was given an opportunity to make representations about the amendment, and to consider her position and lead further evidence in that regard.

The commissioner had clearly misconstrued the legal standard for procedural fairness and thus committed a gross irregularity in the arbitration proceedings. In the court's view, the commissioner's comment that the actions of the chairperson in amending the charge sheet seemed to confirm that he was not impartial indicated that the commissioner had failed to properly apply his mind to the issue of procedural fairness. The court confirmed that the commissioner's finding was reviewable and that the employee's dismissal was procedurally fair.

This decision confirms that a charge sheet may be amended during disciplinary proceedings if:

  • the amendment does not affect the severity and seriousness of the charge(s);
  • the amendment relates only to the labelling or 'categorisation' of the charge(s), and not to the employee's alleged factual conduct;
  • the parties are afforded the opportunity to make representations regarding the proposed amendment to the chairperson of the disciplinary enquiry (ie, before the chairperson allows the amendment);and
  • the parties are afforded the opportunity to lead further evidence on the allegation(s), after the amendment has been allowed.

The employer succeeded in both the review and counter-review applications.

For further information on this topic please contact Regina da Silva at Edward Nathan Sonnenbergs by telephone (+27 11 269 7600), fax (+27 11 269 7899) or email (rdasilva@ens.co.za).

Endnotes

(1) 2011, 32 ILJ 1169 (LC).

(2) 2006, 27 ILJ 16644 (LC).

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